Sharia Law in Canada?

[Britney Spears]

Well you can rest easy, then, because nothing nefarious is being "allowed". Unless Sapper Bloggins can explain by what tortured logic he came to that conclusion.

 

[48Highlander]

Huh?

Arbitrators cannot pass binding judgements which are illegal. If your arbitrator tells you not to pay taxes for next year, you think the gummint is going to stand by idle?

Are you even vaguely familiar with the due proccess leading up to an agreement to arbitration?

Not legaly binding, but that's not what he was refering to.  Are you being deliberately obtuse?  If a Sharia court passes judgement that a muslim woman may devorce her husband, but that he will receive all their posessions, do you really suppose she'll get offended and take it to a different court?  Or is it more likely she'll cave to social pressure?  While the findings of these courts may not be enforced by the Canadian legal system, they will be enforced by cultural/social pressure.  Certainly, that pressure already exists, however, by officialy reckognizing Sharia law as an alternative to our own civil courts, we're giving it legitemacy and making it even harder for these individuals to integrate into our society.

 

[Mojo Magnum]

"In theory or not, I don't want it allowed period. All they need is a toe hold (maybe its too late now??), and once this happens, given an inch they'll take a mile. If any of 'them' want Sharia law, they can go back to where they bloody well came from."

BINGO.

 

[Britney Spears]

Have any of you actually witnessed an appeal to arbitration before? Because I feel that you're still missing the entire point.

If a Sharia court passes judgement that a muslim woman may devorce her husband, but that he will receive all their posessions, do you really suppose she'll get offended and take it to a different court?

Why not? Seeing as how this is Canada, not Iran. What "Islamic court" are you talking about? There is no proposal to set up islamic courts in Canada.

Or is it more likely she'll cave to social pressure?

If one is going to "cave to social pressure" then why go into arbitration to begin with?

While the findings of these courts may not be enforced by the Canadian legal system, they will be enforced by cultural/social pressure.  Certainly, that pressure already exists, however, by officialy reckognizing Sharia law as an alternative to our own civil courts, we're giving it legitemacy and making it even harder for these individuals to integrate into our society.

Sharia law is NOT al alternative to our civil courts, wasn't this explained to you in like the third post of the thread? If your oil company and my oil company had a disagreement regarding some technical matter related to the oil industry, we go to an arbitration board composed of experts in the oil industry. This happens every day, it's stipulated in most contracts. Are we substituting "Oil industry law" for the CCORF?  This comparison is ludicrous, the ONLY reason why this is even news is because it involved *gasp* Muslims.  :

 

[paracowboy]

the ONLY reason why this is even news is because it involved *gasp* Muslims.  

speaking strictly for myself, the only reason I'm taking an interest at all is because of the number of Muslim groups that are dead-set against it. Makes me go "hmmm".

 

[Cloud Cover]

I've been in front of many arbitration boards. Can't say they are all bad as they generally make their own rules with respect to procedure- which often [but not always] provides more fairness than before the courts. I fear Sharia will fall into the "not always" class of boards.  

I'm uncomfortable with the use of the term arbitrator in this case. The courts generally hold out a fair bit of deference for arbitrators, as opposed to something "less"- for example it is very rare a labour arbitrator is overturned. What is more, a statute will be created to permit this sort of activity, and the statute will contain the route of appeal for any decision- but I would hope it contains a weak privity clause which might allow the instant and automatic stay of the arbitrators decision pending determination of the appeal. There should be a long window of opportunity to appeal- say several years. There must also be very broad grounds for the appeal- not just the typical administarive law grounds, but also grounds such as those found in contract law - "duress", "illegality" etc.

Arbitrators also have powers to subpoena, to asssess credibility of witneses and other evidence. It seems to me the Ontario Evidence Act ought to prevail, and I would be hesitant to permit a religious fundamentalist the power to subpoena either testimonial evidence or other evidence.
 
I would also like to see provision for third party intervention into all appeals so that women are not prevented from appealing due to lack of financial capability. Where a court overturns an arbitrators decision, I would like to see the arbitrator responsible for all legal costs of the appeal on a substantial indemnity scale.   There should also be instant and automatic blanket injunctive relief granted to women appealing Sharia decisions which restrain family members and religious groups from pressuring women to drop the appeal.

But what I would really like is for the issue to go away and an outright ban on any non-progressive foolishness such as Sharia and other such non-essential religious accommodation in the judicial system.  Marion Boyd ought to be ashamed of herself- but IMO she never really had any sense of respect for the configuration of the justice system to begin with. Thats just my opinion, and of course many others hold her in very high regard.    McGuinty will probably have PMPM appoint her to the bench, maybe even the court of appeal.      

 

[Britney Spears]

what is more, a statute will be created to permit this sort of activity, and the statute will contain the route of appeal for any decision- but I would hope it contains a weak privity clause which might allow the instant and automatic stay of the arbitrators decision pending determination of the appeal.

Why a new statute? Why not just use the existing Commercial/Divorce Arbitration Acts? They are all as secular as we could want. In fact, I think that this would be counter productive and appear to give Muslim arbiters special treatment, I'm definitely against that.

I would also like to see provision for third party intervention into all appeals so that women are not prevented from appealing due to lack of financial capability.

Hmm, who determines the criterea for this? I'm not against this in principle but it seems rather difficult to implement. By the same reasoning, you should also extend the provision to intervene in arbitration between individuals and large corporations then? I'm a little hazy on the details here, is there such a provision in place, beyond the usual "duress" stuff? 

Where a court overturns an arbitrators decision, I would like to see the arbitrator responsible for all legal costs of the appeal on a substantial indemnity scale. 

Sounds good.

But what I would really like is for the issue to go away and an outright ban on any non-progressive foolishness such as Sharia and other such non-essential religious accommodation in the judicial system.

Sounds good too. I'm not really sure if anything is even changed here. On the other hand, private arbitrations are still private, if both parties agree to a Mullah for an arbitrator, is it the gummint's role to determine the fitness of the arbitrator? Wouldn't this be discrimination on the basis of religion?

 

[Cloud Cover]

Why a new statute? Why not just use the existing Commercial/Divorce Arbitration Acts? They are all as secular as we could want. In fact, I think that this would be counter productive and appear to give Muslim arbiters special treatment, I'm definitely against that.

Actually, I think this is going to be an amendment to the Family Law Act. Currently the Act provides for mediation, not arbitration. I am not sure of the applicability of the Arbitration Act* to family law, but I don't think it is specifically excluded. [don't know, not involved in family law at all]

Hmm, who determines the criterea for this? I'm not against this in principle but it seems rather difficult to implement. By the same reasoning, you should also extend the provision to intervene in arbitration between individuals and large corporations then? I'm a little hazy on the details here, is there such a provision in place, beyond the usual "duress" stuff?  

The intervention would occur in the judicial process, not the arbitration process. Intervenor status is provided for in Charter cases, however   I think it ought to be broadened where religious principles are engaged vis fundamental human rights.

Sounds good too. I'm not really sure if anything is even changed here. On the other hand, private arbitrations are still private, if both parties agree to a Mullah for an arbitrator, is it the gummint's role to determine the fitness of the arbitrator? Wouldn't this be discrimination on the basis of religion?

Typically, qualified arbitrators for labour etc. are appointed to a roster by the AG or the respective line ministry of government.   Often, it is a patronage appointment. Arbitration authorized by statute and regulated by government has the force of law subject to judicial review. Unauthorized or unregulated private arbitration does not have the force of law- such private events are commonly referred to as alternative dispute resolution. What the government and Boyd are attempting to do is give Sharia the force of law in Canada, and that is a very dangerous precedent which could result in courts attempting interpret Sharia law, and perhaps eventually applying certain aspects of Sharia into other areas of family law by stealth or inadvertence.

* Ack... the proposal also involves a modification to the Arbitration Act. As a result, the parties may select or designate their own qualified arbitrator. 

 

[Britney Spears]

OK, first, Boyd says the same thing I was saying:

In initial comments to the media in late 2003 Syed Mumtaz Ali, president of the IICJ(Islamic Institute for Civil Justice), stated, "[n]ow, once an arbitrator decides cases, it is final and binding. The parties can go to the local secular Canadian court asking that it be enforced. The court has no discretion in the matter. The...impracticality [not being allowed to use Sharia] has been removed. In settling disputes, there is no choice but to have an arbitration board."2

...Syed Mumtaz Ali's statements, and the statements of members of the Muslim community who took a position supporting the IICJ proposal, suggested that the government had given some form of special permission to the IICJ to undertake its project. The idea that government had
approved the use of Sharia began winding its way into the public consciousness. The mistaken belief that the government had recently made changes to the law on arbitrations was widely disseminated through the public press and electronic media.4
The idea that the IICJ legitimately held some form of coercive power which would allow it to force Muslims in Ontario to arbitrate according to Islamic personal law instead of using the traditional court route to resolve disputes was formed as a direct result of the pronouncements of the IICJ. That this declaration appears to have been taken at face value by both the Muslim community and the broader community is particularly troublesome.

...It bears repetition that, in spite of perceptions to the contrary, the government had not amended or introduced any legislation or regulations that allowed the IICJ to conduct arbitrations according to Islamic personal law. Rather, the structure of the Arbitration Act itself created this possibility. In fact, the government had never been in contact with or heard of the IICJ until early 2004.

Now.....

Actually, I think this is going to be an amendment to the Family Law Act. Currently the Act provides for mediation, not arbitration. I am not sure of the applicability of the Arbitration Act* to family law, but I don't think it is specifically excluded. [don't know, not involved in family law at all]

Apparently. the Arbitration Act applies to family law and inheritence as well. I don't know how widely it is used for such, because I've never heard of it before this either, but then again I'm not Catherine Bell. 

The intervention would occur in the judicial process, not the arbitration process. Intervenor status is provided for in Charter cases, however  I think it ought to be broadened where religious principles are engaged vis fundamental human rights.

Maybe I'm misinterpreting here, but when did religious principles ever engage vis The Charter? In simple terms, if the female party of a divorce arbitration feels that she has been handed an unfair ruling based on her gender, which is protected by the Charter, and can prove as much, the whole arbitration is illegal, is it not?

Typically, qualified arbitrators for labour etc. are appointed to a roster by the AG or the respective line ministry of government.  Often, it is a patronage appointment. Arbitration authorized by statute and regulated by government has the force of law subject to judicial review. Unauthorized or unregulated private arbitration does not have the force of law- such private events are commonly referred to as alternative dispute resolution.

The Arbitration Act has no provision over labour arbitration or international commercial arbitration. Those are covered by different statutes. (Do I get a cookie? )

What the government and Boyd are attempting to do is give Sharia the force of law in Canada, and that is a very dangerous precedent which could result in courts attempting interpret Sharia law, and perhaps eventually applying certain aspects of Sharia into other areas of family law by stealth or inadvertence.

So you are saying that the courts will eventually start using Arbitration rulings as precedent for court cases? Can you elaborate on this? If this is true, then it is a truly remarkable proposal which would be unconstitutional in about 100 different ways.  I'm afraid I cannot find any mention of such in Boyd's report.





 

 

[Britney Spears]

Maybe I'm misinterpreting here, but when did religious principles ever engage vis The Charter? In simple terms, if the female party of a divorce arbitration feels that she has been handed an unfair ruling based on her gender, which is protected by the Charter, and can prove as much, the whole arbitration is illegal, is it not?

OK, I've done some more reading, and as far as I can tell, there is merit to both sides of the arugment for this one. Boyd is saying that since private arbitration is an agreement between private parties and not ground in statute, The Charter does not apply. Critics say that since arbitration rulings are ultimately enforced by the courts, The Charter still should.

I'm kind of leaning towards siding with Boyd and Libertarianism, but I'll have to read some more.....

 

[Sapper Bloggins]

Glad you've taken some time to do a little more reading Britney Spears :-*

Let me be clear, that the rights of women are being sacrificed for the sake of multiculturalism.
I do not agree that there is a "substantial difference" between authorizing sharia-based mediation services and implementing sharia law for matters cognizable by the mediation. The Muslim activists impelling this development are clear that their idea of sharia is what will hold sway, not what non-Muslims think sharia is.

 

[TCBF]

An overriding cultural issue is the illusion of voluntary participation in a closed patriarchal society.  You bet all of those women are going to "volunteer" to be under Sharia.  Right.  sign the form, baby, or no one in your tribe will ever pass you without spitting on the ground, and your cousin back in Medina might encounter "difficulties."  Too bad you can't hide in a safe house since you don't speak ENGLISH.

I can't wait until OHIP covers ritual female genital mutilation.

Tom

 

[Infanteer]

If some folks are so eager to see the Shari'a, why don't they move to an Islamic Republic?

 

[TCBF]

Or sit right here and WAIT.

Tom

 

[TCBF]

http://www.canadiangunnutz.com/viewtopic.php?t=79855

Another couple of years, and these two links may have to merge.

;D

Tom

 

[Infanteer]

I'm serious here - I'm just a bit mixed up.  The Shari'a has no precendent in our legal history; it is based upon a completely foreign idea of Islamic law which has had near zero input on traditional Western notions of justice, legality, and morality.

I would think that many Muslims come to Canada to get away from imposition of the Shari'a in many countries (Afghanistan, Iran, etc, etc); yes, there are other reasons for emigrating from Islamic states, but Muslims I know have done so for this reason.  If the lack of its use here represents a serious hampering of their lifestyle, then wouldn't they want to head back to a place where its use is the norm for that particular society?

 

[Spr.Earl]

Aint Mult.i Cult. great?

 

[paracowboy]

 If the lack of its use here represents a serious hampering of their lifestyle, then wouldn't they want to head back to a place where its use is the norm for that particular society?

you forget the responsibility to convert dar-al-harb, and the fact that immigrants, for the most part, don't want a different lifestyle, they want a higher standard of living while continuing to live as they were raised in their home country.
This holds true throughout all of history. Look at the various "chinatowns," "little Italy's", etc. They left to make more money and have a better lifestyle, but they stayed in small communities where they continued to live as their parents had "back in the old country". It works the same no matter how far back you go, or where on the globe. Normandy is called such because a bunch of Norsemen settled there, and imposed their culture on the Gaullic people's already in place.
It isn't until 2 generations or more that particular ethnicities begin to feel an affinity for their "new" country's culture. But, we have decided to actively enforce the differences through our bizarre cult of "everybody's culture is better than ours", thus slowing down and actually preventing assimilation.
These are generalizations, but fairly accurate (as any general idea can be, if you leave it vague enough  )

 

[Britney Spears]

Glad you've taken some time to do a little more reading Britney Spears Kiss

Well, now that I've done it so you don't have to, why do you still insist on being wrong?

 

[Sapper Bloggins]

Well, now that I've done it so you don't have to, why do you still insist on being wrong?

Arguing on the internet is like running in the Special Olympics.
Even if you win, you're still retarded.

nuff said,out to you.